Temporary restraining order denied, but another vernal pool dispute continues in the City of Redding, California
Butte Environmental Council v. U.S. Army Corps of Engineers and U.S. Fish & Wildlife Service, 2:08-cv-01316-GEB-CMK, Order (E.D.Cal. June 20, 2008).
BACKGROUND: Plaintiff Butte Environmental Council filed a complaint against Defendants United States Army Corps of Engineers (“Corps”) and United States Fish and Wildlife Service (“Service”). On June 12, 2008, Plaintiff filed an ex parte Motion for a Temporary Restraining Order (“TRO”), seeking to “stay the Corps’ issuance of the Section 404 permit and the [Service’s] Biological Opinion/Incidental Take Statement for the Stillwater Business Park.” ... The Project will include road construction, two bridges, utility lines, culvert drains, parking lots, two electrical substations and buildings. The Project will directly and indirectly affect critical habitats for the threatened vernal pool fairy shrimp, endangered vernal pool tadpole shrimp and threatened slender Orcutt grass.
CRITICAL EXCERPT AND HOLDING: Plaintiff argues, “In the present case, absent an injunction, the vernal pools and critical habitat that are the subject of this case will be destroyed before a hearing on the merits of this case.” (Mot. at 15:12-13.) The City counters that “current construction work involves development of ‘Phase 1’ of a roadway which, in two small locations, slightly crosses over into the border of an area that has been designated as ‘critical habitat area’ for these species – but the road does not actually involve any filling or other impacts to any identified vernal pool area.” (Amicus Brief at 2:7-11.) The City’s position is unrebutted. Plaintiff has not shown irreparable harm to the threatened and endangered species will occur before a preliminary injunction hearing can be held. Accordingly, Plaintiff’s request for a TRO is denied.
Photo of a vernal pool fairy shrimp by Dwight Harvey from U.S. FWS, available on Fairy Shrimp Recovery Plan webpages
KEITHINKING: The request for a Temporary Restraining Order, or TRO, marks only the very begininng of the litigation process. A preliminary injunction hearing may soon follow to determine whether the Plaintiffs are likely to prevail on the merits and whether the project should be stopped to avoid irreparable harm. Plaintiffs who lose twice on a TRO and a PI motion will not pursue the third stage; however, measures impacting vernal pool species remain extremely controversial in California, however, due to the severely depleted state of the species habitat, so in this case, relentless litigation may be unsurprising.
WHAT IS A VERNAL POOL? As explained by wikipedia and the American Heritage Science Dictionary, a vernal pool is "a seasonal body of standing water that typically forms in the spring from melting snow and other runoff, dries out completely in the hotter months of summer, and often refills in the autumn. Vernal pools range from broad, heavily vegetated lowland bodies to smaller, isolated upland bodies with little permanent vegetation. They are free of fish and provide important breeding habitat for many terrestrial or semiaquatic species such as frogs, salamanders, and turtles." These picturesque habitats create bands of changing plants and wildlife, based on variations in soil moisture and temperature as the pool fills and dries. The vernal pool shrimp, therefore, is a particularly amazing species, because the species can survive the constant change and wetting and drying out of these pools. Furthermore, adding to the controversy, more than 90% of these habitats are lost in California, as Defenders of Wildlife has argued in related cases. Obviously, passion runs high in these matters. FOR MORE INFORMATION see news article from redding.com,